Property Division During Divorce: What Will You Get?

If you are going through or considering a divorce, you may be wondering what will happen to your property or your spouse's property. Different states have different ways of dividing property, so much of what you will be entitled to depends on where you live. Here are a three possibilities.

1. Property Settlement Agreement

One of the easiest ways to determine who gets what during divorce is by making an agreement with your spouse. If at any time you and your spouse created a prenuptial agreement, a property settlement agreement, or other contract, that may list out who gets what during a divorce.

If you do not have such an agreement when you decide to get divorced, you can still create one if your spouse is cooperative. However, if you and your spouse are unable to agree on the property division, courts can help decide.

2. Community Property Division

Some states follow community property principles, meaning that any property acquired by either spouse during the marriage becomes marital property. During the divorce, marital property is split 50/50 between both spouses. A spouse's separate property is not subject to division.

The issue surrounding community property division involves what can be considered marital property and what is separate property. Separate property includes property owned before the marriage, gifts received by only one spouse, and inheritances given to one spouse. On the other hand, marital property is anything acquired during the marriage and anything that is owned jointly.

Community property states include Idaho, Nevada, New Mexico, Washington, Texas, Wisconsin, Arizona, Louisiana, and California.

3. Equitable Distribution

In states that do not follow community property principles, equitable distribution is usually how courts divide up property. Equitable distribution is based on principles of fairness rather than equality. During equitable distribution, courts will decide what will be the most beneficial for both spouses.

In deciding this, courts look at the future financial situation of each spouse, custody of children, and any other factor that may be important. The courts make no distinction between marital property and separate property when considering these factors.

If one spouse is unable to work and will have sole custody of the children, that spouse may be given more of the property during the divorce. On the other hand, if a spouse has a great job, is extremely wealthy, and will not have the children, that spouse will likely not get as much property and may need to pay support.


Depending on where you live, the rules governing the division of property during divorce may differ. Feel free to consult with a family lawyer to see just what you will be entitled to during your divorce.